Because a will provides directions for what happens after you die, everyone should consider making a will. Wills can distribute your property to your loved ones, name an executor to wrap up your affairs, name guardians for children, forgive debts, and more. Having a will also means that you, rather than your state’s laws, get to decide who receives your property when you die. In most cases, wills are typewritten legal documents that are signed and witnessed, but some states do recognize other types of wills.
A Will Allows You to Decide Who Gets What
When you die without a will or other estate plan, state laws known as "intestate succession laws" decide which family members will inherit your estate and in what proportion. In most states, the laws specify that your spouse and children take priority.
Most people want to distribute their property differently than the state would distribute it. For example, many people want to leave gifts to friends, neighbors, non-spouse partners, schools, and charitable organizations—and intestate succession does not allow for any of that. If you want other people or organizations to inherit your property, or if you want to decide the proportions of your gifts, a will can make sure your wishes are followed. In other words, a will allows you to decide exactly who gets what.
Prince Died Without a Will: A Cautionary Tale
When Prince died in 2016 without a will or any estate plan, leaving behind $156 million without any direction of who should receive his property, his sister and half-siblings became the heirs apparent. (Prince had no living parents, spouse, or children.) Is this what he would have wanted? There's no way to know, of course. But it's unlikely he would have wanted his property to be the subject of litigation for many, many years.
A Will Names Someone to Wrap Up Your Estate
A will can also name someone as your "executor"—the person who will wrap up your estate. This person oversees the probate process and eventually distributes your property to the people you named to inherit it.
A Will Names a Guardian for Young Children
You can use other estate planning tools to distribute your property (like living trusts, beneficiary designations, joint tenancy, and transfer on death deeds), but only your will can name a personal guardian for your children—the person who would take care of your children if you died while they were still minors. So how important is a will? It depends on your situation, but if you have minor children, the importance of a will escalates. In fact, even if you make a living trust to distribute every single piece of your property to your beneficiaries, you should still have a will to name a personal guardian for your children.
A Will Can Name a Property Guardian for Young Children
You can also use a will to name a property guardian for any children who are still minors. Minors can inherit property, but an adult must manage that property until the children become adults. If you don't name a property guardian but leave money to minor children, a court will have to name someone to manage that property, and the result may not be what you wanted, and the process can cause delays and expenses.
A Will May Reduce Family Conflict
The division of an estate after death comes with many emotions. The slightest differences can result in hurt feelings and recriminations. And as blended families become more common, dividing assets has become even more complicated. A will that clearly lays out your wishes can reduce conflict and speculation over what you “would have” wanted. For example, if you're in a second marriage and have children from your first marriage, you might find that having a will is of utmost importance to you. You may want to use a will to clearly distribute your property between your second spouse and your children. Without a will or other plan, your property would be divided between them according to state law—this could produce an uncomfortable result as well as speculation about what you would have wanted. Making a plan can give you peace of mind and prevent your family from fighting over your possessions.
You Might Need a Backup Will Even If You Have a Living Trust
If you have a living trust already, you might think you don't need a will. But most people with living trusts also have a very basic will. This will essentially acts as a catch-all for any property that isn't in your trust—either because you acquired the property after you made the trust, forgot to put it in the trust, didn't realize you had the property, or any number of other reasons.
A Will Can Save Your Loved Ones Money and Time
Even with a will, your estate will likely have to go through the probate process, which can take time and cost money. (If you're interested in avoiding probate, see Top 7 Ways to Avoid Probate.) But if you don't have a will, the process can take even longer, since there will be additional steps involved. For example, the court will need to name someone to manage the estate, since there will be no executor. And the court will also need to determine who receives your property according to the state's intestate succession laws.
A Trusts and Estates Lawyer Can Help
You don’t need a lawyer to make a will, and there are plenty of good self-help products like WillMaker & Trust that can help you do it yourself. But if you have a complicated situation, don’t want the hassle of figuring out how to do it on your own, or just like the peace of mind that comes with hiring a professional, then find an experienced estate planning attorney to help you. (See What Can an Estate Planning Attorney Do for You?)
Questions to Ask Your Lawyer
- Do I have to leave anything to my spouse?
- Can I use my will to leave money to my pet?
- Is it okay to name both of my children to be co-executors?